Criminal Defense Lawyers

FAQs About Federal Criminal Appeals and Habeas Actions

FAQs About Federal Criminal Appeals and Habeas Actions

So you or your loved one has been convicted of a federal crime and you want to appeal the conviction or sentence. Or maybe you already went through the direct appeal process and lost, and now you want to file a habeas petition to challenge the conviction. This article will walk you through some frequently asked questions about the federal criminal appeals and habeas process.

What is a direct appeal?

A direct appeal is the first appeal filed after a criminal conviction or sentence. It goes directly to the appellate court in the jurisdiction where you were convicted – for federal criminal cases, that is the U.S. Court of Appeals.On direct appeal, you can only raise issues and arguments related to errors that allegedly occurred in the original criminal case and trial. Common issues raised include insufficient evidence, procedural errors by the judge, incorrectly applied sentencing guidelines, ineffective assistance of counsel, and more. The appellate court is limited to the trial court record and cannot consider new evidence.

What are the deadlines for filing a direct appeal?

For federal criminal cases, you generally must file a notice of appeal within 14 days after the entry of the judgment. This deadline is strict and it’s important to act fast after a conviction to preserve your right to appeal.After filing the notice of appeal, your attorney will request preparation of the trial transcripts and court documents. Once the record is complete, your attorney will have 40 days to file the opening brief outlining the issues and arguments for appeal.

If I lose on direct appeal, what are my options?

If you lose your direct appeal, you still have a few options:

• Request an en banc rehearing – Ask all the judges on the Court of Appeals (rather than just a three-judge panel) to reconsider your case. This is rarely granted.
• File a petition for cert with the U.S. Supreme Court – Ask the Supreme Court to review your case. The Supreme Court rejects most petitions for cert, but it may decide to hear a case if there is a split between Circuit courts on an issue, or if there is an important Constitutional issue at stake.
• File a habeas petition – Challenge the validity of your conviction and sentence through a collateral attack rather than a direct appeal. This is discussed more below.

What is a federal habeas petition?

A habeas petition is a way for federal and state prisoners to collaterally challenge the constitutionality of their imprisonment. Habeas petitions are governed by the Antiterrorism and Effective Death Penalty Act (AEDPA) and are filed after direct appeals have been exhausted.In a habeas petition, you can raise issues like ineffective assistance of counsel, prosecutorial misconduct, actual innocence based on new evidence, involuntary plea bargains, and more. The key is that there must be a Constitutional issue or violation at stake – you cannot simply rehash issues already decided on direct appeal.

What are the deadlines for filing a habeas petition?

For federal prisoners, you generally must file your habeas petition within one year from the latest of:

• The date your conviction became final after direct appeal
• The date an illegal government impediment to filing was removed
• The date the Constitutional right being relied on was first recognized by the Supreme Court

These deadlines are strict, so don’t delay in filing your habeas petition. State prisoners have different deadlines that vary based on state law.

Do I need a lawyer to file an appeal or habeas petition?

It’s strongly recommended you have an experienced federal criminal appeals lawyer assisting you with any post-conviction motions, appeals, or habeas petitions. The law and procedures here can be complex, with strict deadlines, so having proper legal advice is critical.If you cannot afford a private lawyer, discuss options like court-appointed counsel or assistance from a law school clinic. You can also research appeal issues yourself in the prison law library and attempt to file pro se.

What happens after I file my habeas petition?

After your habeas petition is filed, the court will first review it to make sure it meets basic procedural requirements. If you are granted permission to move forward, the government will file a response, and you may file a reply.The judge will then review the filings and trial record and decide if an evidentiary hearing is necessary. If not, the judge can rule on the papers submitted.Given how backlogged federal courts are, it may take many months or even years before the court issues a ruling on your habeas petition. But with a good lawyer and strong Constitutional claims, you have a chance of succeeding and overturning your conviction or sentence.

Can I file successive habeas petitions if my first one fails?

Generally, no. The AEDPA imposes strict limits on “second or successive” habeas petitions. You must first get approval from the Court of Appeals by showing either:

1. New evidence that establishes your innocence, or
2. A new rule of Constitutional law made retroactive by the Supreme Court

This is a very high bar, so realistically you only get one chance at habeas relief absent extraordinary circumstances. But one bite at the apple is still extremely valuable and can get you released from prison if you have a meritorious case. Don’t give up hope.

What if I need more time to file my appeal or habeas petition?

For direct criminal appeals, the notice of appeal deadline is strict and usually cannot be extended. But you can request more time to file your opening brief if needed.For habeas petitions in federal court, you can file a motion for equitable tolling asking the court for more time to file. This is granted only in “extraordinary circumstances” like an attorney’s negligence or mental/physical impairment preventing a timely filing. State courts often have similar procedures under state law.

Can I get appointed counsel to assist with my appeal or habeas case?

If you cannot afford a lawyer, you can request appointed counsel to assist with direct appeals or habeas petitions. This is not guaranteed, but federal courts and some state courts will appoint counsel in the interest of justice, especially for complex cases with potentially meritorious issues.Federal public defender organizations and “death penalty resource centers” may also be able to provide counsel for capital habeas cases or cases with debatable issues. Don’t be afraid to advocate for yourself and ask the court to appoint a lawyer if you have a difficult case and were denied counsel earlier.

What if I am innocent – can I still appeal or petition for habeas relief?

Yes! Claims of actual innocence are some of the strongest arguments you can make to overturn a wrongful conviction. With new technology like DNA evidence and improvements in forensic science, more innocent people have been able to succeed with innocence claims in their appeals and habeas petitions every year.Don’t be afraid to challenge your conviction by presenting new evidence of innocence – you could end up walking free if you have a compelling case. An experienced federal criminal appeals lawyer can help build the best case possible. Don’t lose hope!That covers some of the most frequently asked questions about federal criminal appeals and habeas proceedings. Every case is different, so get advice from a good lawyer about the specifics. Don’t be afraid to stand up and challenge your conviction using every legal tool possible – the appeals system exists for a reason. With hard work and commitment to revealing the truth, justice can still prevail even after trial.

More Resources:

• A Jailhouse Lawyer’s Manual from Columbia University<sup>
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• Federal Habeas Corpus Review from the Federal Judicial Center<sup>
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• Coping With the Fallout From Criminal Charges from HelpGuide<sup>
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